Free Response to Motion - District Court of Federal Claims - federal

Case 1:06-cv-00146-TCW

Document 20

Filed 04/30/2007

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS TETRA TECH EC, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 06-146C (Judge Wheeler)

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT Defendant, the United States, respectfully submits this brief in opposition to the motion of plaintiff, Tetra Tech EC, Inc., for leave to amend the complaint. Tetra Tech's motion is untimely and would result in prejudice to the defendant if granted. In the alternative, if Tetra Tech's motion is granted, we request that discovery be re-opened for 60 days. The decision whether to grant leave to amend a complaint pursuant to Rule 15(a) of the Rules of this Court is entrusted to the Court's discretion. First Interstate Bank of Billings v. United States, 61 F.3d 876, 881 (Fed. Cir. 1995). Commonly identified grounds for a court's denial of a proposed amended pleading include: (1) undue delay; (2) bad faith; (3) dilatory motive; (4) repeated failure to cure deficiencies; (5) undue prejudice to opposing party; or (6) futility of proposed amendment. Te-Moak Bands of W. Shoshone Indians of Nevada v. United States, 948 F.2d 1258, 1260-61 (Fed. Cir. 1991) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)). As stated in Spalding & Son, Inc. v. United States, 22 Cl. Ct. 678, 680 (1991) "[t]he existence of any one of these criteria is sufficient to deny a motion to amend, the theory being that the amendment would not be necessary to serve the interests of justice under the circumstances."

Case 1:06-cv-00146-TCW

Document 20

Filed 04/30/2007

Page 2 of 5

Tetra Tech's motion should be denied because of undue delay, dilatory motive, prejudice to the defendant, and possible bad faith. According to Tetra Tech's motion, Tetra Tech became aware of the purported basis for its amended complaint, at the very latest, on February 13, 2007. Pl. Mot. at 4 (describing deposition taken on February 13, 2007, as providing the "factual and legal basis" for the amended complaint). Tetra Tech nonetheless waited two months, until April 13, 2007, to seek leave to amend. Tetra Tech's motion does not offer any excuse for its delay. The actual reason for the delay appears to have been Tetra Tech's desire to obtain a tactical advantage by waiting until after the close of written discovery on March 30, 2007, to seek leave to amend.1 Count Six of the proposed amended complaint asserts a new theory of damages that increases the amount Tetra Tech is seeking in this action to $1,864,386.86, exclusive of interest. The new amount sought is an increase of $675,963.74, exclusive of interest, from the $1,118,442.62 amount sought in the original complaint.2 The Government would be prejudiced if the Court were to grant Tetra Tech's postdiscovery motion to add a new theory of damages and increase its claim by $675,963.74. The basis for the new theory is described only in conclusory terms. According to the proposed amended complaint, "[c]orrecting the calculation and formula upon which the Government relies

Written discovery closed on March 30, 2007, pursuant to the Court's scheduling order dated August 10, 2006. Deposition discovery was enlarged until April 30, 2007, pursuant to the Court's order dated March 26, 2007. On April 24, 2007, we filed a motion to enlarge deposition discovery by an additional 25 days, until May 25, 2007, due to defense counsel's involvement in a newly-filed bid protest. That motion, which Tetra Tech has opposed, is still pending. Tetra Tech's motion also contends that the amount sought in the original complaint should have been $1,188,422.62 instead of $1,118,422.62. We accept Tetra Tech's explanation of that typographical error, and do not oppose amending the complaint to correct that error. -22

1

Case 1:06-cv-00146-TCW

Document 20

Filed 04/30/2007

Page 3 of 5

to properly apply the scope of Modification 03, results in a recovery of $1,337,512.82, plus CDA interest," and "[f]urther correcting the calculation and weighted formula to account for the additional excavations which the Government admits should be credited to Tetra Tech, results in a recovery of $1,864,386.86." Proposed Am. Compl. ¶¶ 51-52. The nature of the "corrections" is not described, the Government's alleged "admissions" are not identified, and Tetra Tech's calculations are not provided. Tetra Tech had previously provided some information relating to Count Six in the context of confidential settlement discussions. Tetra Tech waited until April 20, 2007 ­ one week after it filed its motion for leave to amend ­ to issue a letter that partially waived the confidentiality of those settlement discussions. However, the non-confidential spreadsheets that Tetra Tech provided on April 20, 2007, attached hereto as Exhibit A, are not self-explanatory. Nor are these incomplete disclosures from Tetra Tech a substitute for the complete information that the Government could obtain through discovery. Accordingly, the Government would be prejudiced if Tetra Tech were allowed to add a new count to the complaint, shield it from discovery, and present it in full for the first time at trial. In the alternative, if the Court were to grant the leave to amend the complaint, then the Court should also reopen discovery for a 60-day period. If Tetra Tech had timely sought leave to amend the complaint prior to the close of discovery, the Government would have taken additional discovery. A 60-day enlargement of discovery is a reasonable condition to impose upon Tetra Tech's untimely request for leave to amend the complaint and increase its claim from $1.12 million to $1.86 million. -3-

Case 1:06-cv-00146-TCW

Document 20

Filed 04/30/2007

Page 4 of 5

CONCLUSION For the foregoing reasons, we respectfully request that the Court deny Tetra Tech's motion for leave to amend the complaint (except to correct the typographical error), or, in the alternative, that the Court re-open discovery for a period of 60 days in the event that the motion is granted.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/ Steven J. Gillingham by s/ Donald E. Kinner STEVEN J. GILLINGHAM Assistant Director s/ Roger A. Hipp ROGER A. HIPP Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 April 30, 2007 Attorneys for Defendant

-4-

Case 1:06-cv-00146-TCW

Document 20

Filed 04/30/2007

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on this 30th day of April, 2007, a copy of the foregoing "DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT" was filed electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Roger A. Hipp

-5-